London Boaters - Government Review

[Teasel]

5 minutes ago, WotEver said:

CaRT et al are therefore effectively sticking with the 2004 guidance and not re-interpreting it, simply using different words to describe the same thing. 

Effectively, yes. They changed 'around the network or at least a significant part of it' as it was too prescriptive (and blatant) but the interpretation of 'used bona fide for navigation' is essentially the same. If you read the various judgments CRT always do the thing with the meanings that I challenged Allan de Enfield on above - make it into one journey, not lots. That makes a difference for range and 'shuttling backwards and forwards' etc.. 

[Alan de Enfield]

22 minutes ago, Teasel said:

I think it's important. The 2004 Guidance, which interprets s17, said the law required 'a progressive journey  around the network' and the 2011 guidance (now in force)

I think you may have 'missed' an issue;

 

The 2015 T&Cs came into force May 2015 and replaced the 2011 guidance.

 

The 2015 version :

 

This Guidance seeks to explain in day to day terms the nature of the movement that must take place.
There are three key legal requirements:-
 the boat must genuinely be used for navigation throughout the period of the licence.
 unless a shorter time is specified by notice the boat must not stay in the same place for more than 14 days (or such longer period as is reasonable in the circumstances); and
 it is the responsibility of the boater to satisfy the Trust that the above requirements are and will continue to be met.

“Navigation”
The law requires that the boat “will be bona fide used for navigation throughout the period of [the licence]”.
‘Bona fide’ is Latin for “with good faith” and is used by lawyers to mean ‘sincerely’ or ‘genuinely’.
‘Navigation’ in this context means travelling on water involving movement in passage or transit. 4
Therefore, subject to stops of permitted duration, those using a boat licensed for continuous cruising must genuinely be moving, in passage or in transit throughout the period of the licence.
Importantly, short trips within the same neighbourhood, and shuttling backwards and forwards along a small part of the network do NOT meet the legal requirement for navigation throughout the period of the licence.
The terms ‘cruise’ and ‘cruising’ are used in this guidance to mean using a boat bona fide for navigation.

[Teasel]

19 minutes ago, Alan de Enfield said:

I think you may have 'missed' an issue;

no I don't think so? The 2015 Ts and Cs use the 2011 Guidance (updated in 2012 to reflect change of the name of the organisation only). You'll find it in both - the 2011 Guidance and the 2015 Ts and C's:

 

'what is required is that the boat is used for a genuine cruise'.

Edited June 13, 2018 by Teasel

[Paul C]

I believe the outcome of the London review will be new legislation, either for CRT or local councils to (more easily) enforce. Thus, the current legislation is not significant.

[magictime]

We're into the real nitty-gritty here, aren't we!

 

Teasel makes a very good point about CRT helping themselves to the idea that the law somehow requires boaters to be on one long cruise punctuated by a series of stops (of up to 14 days), rather than requiring them simply to use the boat for cruising at least once every 14 days.

 

As far as I can see, the 'therefore' in the following has no business being there:

17 minutes ago, Alan de Enfield said:

 

The law requires that the boat “will be bona fide used for navigation throughout the period of [the licence]”.
‘Bona fide’ is Latin for “with good faith” and is used by lawyers to mean ‘sincerely’ or ‘genuinely’.
‘Navigation’ in this context means travelling on water involving movement in passage or transit. 4
Therefore, subject to stops of permitted duration, those using a boat licensed for continuous cruising must genuinely be moving, in passage or in transit throughout the period of the licence.

 

 

[Sir Nibble]

I presume that this is a preamble to some kind of legislative change. Probably a very very long preamble! Still, I can see why Panda is upset since if there is a change in the law she will have to be the one to explain and interpret what it means for the benefit of m'lud.

[Sir Nibble]

3 minutes ago, magictime said:

We're into the real nitty-gritty here, aren't we!

 

Teasel makes a very good point about CRT helping themselves to the idea that the law somehow requires boaters to be on one long cruise punctuated by a series of stops (of up to 14 days), rather than requiring them simply to use the boat for cruising at least once every 14 days.

 

As far as I can see, the 'therefore' in the following has no business being there:

 

 

I don't think the law requires that the boat be moved every 14 days. The movement requirement is that the boat be used bona fide for navigation. That is the movement requirement and it stands alone. 14 days is a limit, not a target and is a maximum stop, not an alternative to the requirements to satisfy the board of bona fide navigation. Indeed, it could be argued that always taking the maximum 14 days raises the eyebrow of suspicion over a commitment to navigation in good faith. Remember that the judge in the Davies case said it's all about intent and motivation, moving because you enjoy boating and you can is bona fide, moving to satisfy the 14 day requirement because you have to is not.

[dmr]

Its all very sad. CaRT and some boating organisations (NABO) should be leading this. A few small changes and some determination could sort it all out, and with something like roving mooring permits even make a bit of extra income. However CaRT appear less and less interested in boating and are starting to loose the expertise to advise on boating matters so it will likely fall to councils to enforce rules on the canal. This will mean private parking companies getting involved and different rules in different areas, and even "seasonal" changes as councils swing between labour and tory control. Sheffield might decide that boaters are like trees and just get rid of the whole lot. Birmingham will narrow its canals to widen the cycle tracks etc etc.

 

..............Dave

[Sir Nibble]

7 minutes ago, dmr said:

Its all very sad. CaRT and some boating organisations (NABO) should be leading this. A few small changes and some determination could sort it all out, and with something like roving mooring permits even make a bit of extra income. However CaRT appear less and less interested in boating and are starting to loose the expertise to advise on boating matters so it will likely fall to councils to enforce rules on the canal. This will mean private parking companies getting involved and different rules in different areas, and even "seasonal" changes as councils swing between labour and tory control. Sheffield might decide that boaters are like trees and just get rid of the whole lot. Birmingham will narrow its canals to widen the cycle tracks etc etc.

 

..............Dave

Roving mooring permits were proposed by BW and shot down by the k&a resident boaters.

[Teasel]

1 minute ago, Sir Nibble said:

Roving mooring permits were proposed by BW and shot down by the k&a resident boaters.

They were shot down by the law, actually. It was unlawful to introduce a third licence category outside of those stipulated in the '95 Act. 

 

17 minutes ago, Sir Nibble said:

I don't think the law requires that the boat be moved every 14 days. The movement requirement is that the boat be used bona fide for navigation. That is the movement requirement and it stands alone. 14 days is a limit, not a target and is a maximum stop, not an alternative to the requirements to satisfy the board of bona fide navigation. Indeed, it could be argued that always taking the maximum 14 days raises the eyebrow of suspicion over a commitment to navigation in good faith. Remember that the judge in the Davies case said it's all about intent and motivation, moving because you enjoy boating and you can is bona fide, moving to satisfy the 14 day requirement because you have to is not.

Magictime said 'at least' and he's right - the law does require that. The other thing(s) to remember  about the Davies case are that it was a County Court judgment - it's given way more weight than it's due. The judge also said that THIS defendant was not navigating in good faith, but made no judgment about anyone else - in fact, he specifically said that this judgment was not to be taken as endorsing the BWB's interpretation of s17, and that he could imagine a case in which a boater fell short of the guidance but was still within the terms of the law. The other thing is that there's no need to navigate for the sake of it, or because you enjoy it - if Davies had argued that he cruised for water on one day, bins a couple of weeks later, to get to some wood he'd left in the hedge after that etc etc.. it would have qualified as bfn. I think the balancing of home/navigation in that case was flawed. Navigation in good faith may well be incidental to use as a home. 

[magictime]

6 minutes ago, Sir Nibble said:

I don't think the law requires that the boat be moved every 14 days. The movement requirement is that the boat be used bona fide for navigation. That is the movement requirement and it stands alone. 14 days is a limit, not a target and is a maximum stop, not an alternative to the requirements to satisfy the board of bona fide navigation. Indeed, it could be argued that always taking the maximum 14 days raises the eyebrow of suspicion over a commitment to navigation in good faith. Remember that the judge in the Davies case said it's all about intent and motivation, moving because you enjoy boating and you can is bona fide, moving to satisfy the 14 day requirement because you have to is not.

I thought the 14 day rule was written into the Act? Although I believe the relationship between that rule, and the bona fide requirement, is the subject of debate. I've read well-informed posts on this forum arguing that at the time the Bill was drafted, the 14 day rule was intended to be the test for bona fide navigation - i.e. the idea was that a boat moving to a new at least once every 14 days would thereby satisfy the Board that it was bona fide being used for navigation. (There's a thread called 'Why is the 1995 Act so ambiguous?' that goes into this.)

[Teasel]

The Judgment is here - https://www.whatdotheyknow.com/request/british_waterways_vs_davies

for anyone who's interested and hasn't seen it - scroll to the bottom. 

[Alan de Enfield]

16 minutes ago, Sir Nibble said:

Roving mooring permits were proposed by BW and shot down by the k&a resident boaters.

Wasn't this basically because C&RT 'wanted their cake and eat it" - if you pay a fee we will protect you from enforcement.

 

The 1995 Act, and C&RTs own T&Cs make a big play of emphasising  "bona fide navigation throughout the period of the licence" and failure to move within the 14 day period will result in your licence being revoked - however, "if you pay us (a not inconsiderable sum) we will turn a blind eye".

 

If C&RT are not in a position to 'make their own rules / laws, then they are not in a position to override Acts of Parliament - it was therefore judged that the Roving / Winter permits are actually illegal.

 

  

Edited June 13, 2018 by Alan de Enfield

[magictime]

3 minutes ago, Teasel said:

The other thing is that there's no need to navigate for the sake of it, or because you enjoy it - if Davies had argued that he cruised for water on one day, bins a couple of weeks later, to get to some wood he'd left in the hedge after that etc etc.. it would have qualified as bfn.

Quite - another mistake that seems to crop up again and again when the interpretation of the bona fide requirement is raised.

[dmr]

10 minutes ago, Sir Nibble said:

Roving mooring permits were proposed by BW and shot down by the k&a resident boaters.

Yes, they got very very close but I suspect some boaters indicated that they would do a legal challenge. The towpath winter moorings went the same way. As we all know the waterways law is not very precise so any challenge to anything has a chance of success. Boaters rejected RMPs on the grounds of why pay for something that we can have for free. Things have changed a lot since then and the choice might now just be between RMPs or no CC licence at all.

 

.............Dave 

[Teasel]

5 minutes ago, dmr said:

Yes, they got very very close but I suspect some boaters indicated that they would do a legal challenge.

A big problem with these on the K and A (one of several) was that they were only going to be available to established CCers in that area. Not to anyone else - it was a stated objective of the policy that it would 'phase out' the boat community there, and allow time for BW/CRT to introduce far more stringent rules that would stop anyone 'putting down roots' in future. I think a legal challenge to avoid being 'phased out' would have been justified. In the end, CRT's own legal advice said they couldn't do it. 

[Graham Davis]

8 hours ago, Dave_P said:

Sorry but that’s not a range. Also 0.5 of a mile, not 1 mile. The cat could walk the other way. 

Then, as I said, you and I have a different opinion on the meaning of "range".

[Dave_P]

8 hours ago, Graham Davis said:

Then, as I said, you and I have a different opinion on the meaning of "range".

From Alan's post #111:

 

"C&RTs definition of 'range' given by Enforcement Manager Simon Cadek :

 

“When we are looking at boat movements we are looking for characteristics of bona fide navigation, these fall roughly into four categories:

· Range: by range we mean the furthest points a boat has travelled on the network, not merely the total distance travelled. While the BW act does not stipulate what that distance is the Trust has previously said that anyone travelling a range of less than say 20 miles (32km) would struggle to satisfy the Trust that they are engaged in bona fide navigation and that normally we would expect a greater range."

 

 

[magictime]

2 hours ago, Dave_P said:

From Alan's post #111:

 

"C&RTs definition of 'range' given by Enforcement Manager Simon Cadek :

 

“When we are looking at boat movements we are looking for characteristics of bona fide navigation, these fall roughly into four categories:

· Range: by range we mean the furthest points a boat has travelled on the network, not merely the total distance travelled. While the BW act does not stipulate what that distance is the Trust has previously said that anyone travelling a range of less than say 20 miles (32km) would struggle to satisfy the Trust that they are engaged in bona fide navigation and that normally we would expect a greater range."

 

 

But surely what CRT are trying to spell out there is just that repeat journeys along the same stretch don't add anything to the total 'range' covered - not that if you cruise 110 miles round the Four Counties Ring, say, your cruising range is only the 50 miles or so between Middlewich and Autherley Junction (as the crow flies)?

Edited June 14, 2018 by magictime

[Mike Todd]

45 minutes ago, magictime said:

But surely what CRT are trying to spell out there is just that repeat journeys along the same stretch don't add anything to the total 'range' covered - not that if you cruise 110 miles round the Four Counties Ring, say, your cruising range is only the 50 miles or so between Middlewich and Autherley Junction (as the crow flies)?

I would have thought that 'commonsense' (sometimes used by courts in determining fuzzy cases!) was that both range and distance traveled are measured in the same way, that is as a length along the path of the canal. Certainly I would expect a boater to claim distance traveled in this way, especially if it was along the Curly Wurly or Oxford canals rather than New Junction. It makes sense to interpret range on the same basis. In an appropriate case, a range along the line of the canal may well exceed the direct distance by a significant factor!

[magictime]

1 hour ago, Mike Todd said:

I would have thought that 'commonsense' (sometimes used by courts in determining fuzzy cases!) was that both range and distance traveled are measured in the same way, that is as a length along the path of the canal. Certainly I would expect a boater to claim distance traveled in this way, especially if it was along the Curly Wurly or Oxford canals rather than New Junction. It makes sense to interpret range on the same basis. In an appropriate case, a range along the line of the canal may well exceed the direct distance by a significant factor!

Well, yes, except that there's a sense in which you can travel a distance of 100 miles by cruising the same 10-mile stretch 10 times - in which case you wouldn't, surely, measure range the same way, but as a simple 10 miles.

[Alan de Enfield]

52 minutes ago, magictime said:

Well, yes, except that there's a sense in which you can travel a distance of 100 miles by cruising the same 10-mile stretch 10 times - in which case you wouldn't, surely, measure range the same way, but as a simple 10 miles.

 

So in that example, distance travelled is 100 miles, range is 10 miles ?

 

Simples (I think)

[magictime]

5 minutes ago, Alan de Enfield said:

 

So in that example, distance travelled is 100 miles, range is 10 miles ?

 

Simples (I think)

Yes, I'd say so.

[alan_fincher]

19 hours ago, Teasel said:

They were shot down by the law, actually. It was unlawful to introduce a third licence category outside of those stipulated in the '95 Act.

That is not my memory of it, and I'm unclear why it needs a new licence category.

 

Surely a mooring provided by CRT under a roving mooring agreement is "somewhere a boat can reasonably be kept"?

 

I have struggled since with the idea that a "roving mooring" permit is not legal, but a "winter mooring" permit is.

Edited June 14, 2018 by alan_fincher

[Dave_P]

7 hours ago, magictime said:

But surely what CRT are trying to spell out there is just that repeat journeys along the same stretch don't add anything to the total 'range' covered - not that if you cruise 110 miles round the Four Counties Ring, say, your cruising range is only the 50 miles or so between Middlewich and Autherley Junction (as the crow flies)?

Yes, you've highlighted the lack of clarity in both CRTs and the IWAs guidance.  It has already been touched on in this thread by Captain Pegg and myself.  In any other circumstance, range would be 'as the crow flies'.  And I tend to think that using this measure is the only way to be sure when continuously cruising.  However, it is possible to envisage a range which follows the twisting course of the canals.  So a cc'er who covers all the BCN but never leaves it would be covering a 100 mile range, but a much smaller area, 'as the crow flies'.  Would this imaginary cc'er satisfy the IWA? I suspect not, because, as I initially said on this thread, the proposal of 100 miles / 300 miles has been arrived at to make it virtually impossible to cc and have a fixed job.  I may well be wrong, but I'm yet to hear another valid rationale from the IWA.

 

When CRT talk about range, this is what I envisage.  https://en.wikipedia.org/wiki/Range_(biology)

 

Perhaps because my first degree was in Ecology.

Edited June 14, 2018 by Dave_P